Equal Protection Clause

Congressman John Bingham of Ohio was the principal framer of the Equal Protection Clause.

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states.

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgment by state governments, even including some rights that arguably were not protected from abridgment by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate; and the story of the Equal Protection Clause is the gradual explication of its meaning.

One of the main limitations in the Equal Protection Clause is that it limits only the powers of government bodies, and not the private parties on whom it confers equal protection. This limitation has existed since 1883 and has not been overturned. However, since the 1960s, Congress has passed most civil rights legislation under its Commerce Clause power.



The words inscribed above the entrance to the U.S. Supreme Court are: "Equal justice under law"

The Fourteenth Amendment was enacted in 1868, shortly after the Union victory in the American Civil War. Though the Thirteenth Amendment, which was proposed by Congress and ratified by the states in 1865, had abolished slavery, many ex-Confederate states adopted Black Codes following the war.

These laws severely restricted the power of blacks to hold property and form legally enforceable contracts. They also created harsher criminal penalties for blacks than for whites.[1]

In response to the Black Codes, Congress enacted the Civil Rights Act of 1866, which provided that all those born in the United States were citizens of the United States (this provision was meant to overturn the Supreme Court's decision in Dred Scott v. Sandford), and required that "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."[2] Doubts about whether Congress could legitimately enact such a law under the then-existing Constitution led Congress to begin to draft and debate what would become the equal protection clause of the Fourteenth Amendment. The effort was led by the Radical Republicans of both houses of Congress, including John Bingham, Charles Sumner, and Thaddeus Stevens. The most important among these, however, was Bingham, a Congressman from Ohio, who drafted the language of the Equal Protection Clause.

The Southern states were opposed to the Civil Rights Act, but in 1865 Congress, exercising its power under Article I, section 5, clause 1 of the Constitution, to "be the Judge of the … Qualifications of its own Members," had excluded Southerners from Congress, declaring that their states, having seceded from the Union, could therefore not elect members to Congress. It was this fact—the fact that the Fourteenth Amendment was enacted by a "rump" Congress—that allowed the equal protection clause, which white Southerners almost uniformly hated, to be passed by Congress and proposed to the states. Its ratification by the former Confederate states was made a condition of their reacceptance into the Union.[3]

By its terms, the clause restrains only state governments. However, the Fifth Amendment's due process guarantee, beginning with Bolling v. Sharpe (1954), has been interpreted as imposing the same restrictions on the federal government.

Reconstruction-era interpretation and the Plessy decision

The Court that decided Plessy

The first truly landmark equal protection decision by the Supreme Court was Strauder v. West Virginia (1880). A black man convicted of murder by an all-white jury challenged a West Virginia statute excluding blacks from serving on juries. The Court asserted that the purpose of the Clause was

to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.

Exclusion of blacks from juries, the Court concluded, was a denial of equal protection to black defendants, since the jury had been "drawn from a panel from which the State has expressly excluded every man of [the defendant's] race."

The next important postwar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have "full and equal enjoyment of ... inns, public conveyances on land or water, theaters, and other places of public amusement." In its opinion, the Court promulgated what has since become known as the "State Action Doctrine," which limits the guarantees of the equal protection clause only to acts done or otherwise "sanctioned in some way" by the state. Prohibiting blacks from attending plays or staying in inns was "simply a private wrong," provided, of course, that the state's law saw it as a wrong. Justice John Marshall Harlan dissented alone, saying, "I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism."

Harlan went on to argue that because (1) "public conveyances on land and water" use the public highways, and (2) innkeepers engage in what is "a quasi-public employment," and (3) "places of public amusement" are licensed under the laws of the states, excluding blacks from using these services was an act sanctioned by the state.

A few years later, Justice Stanley Matthews wrote the Court's opinion in Yick Wo v. Hopkins (1886).[4] He argued: "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." Thus, the Clause would not be limited to discrimination against African Americans, nor would it be limited to equal enforcement of existing laws.

In its most contentious post-war interpretation of the equal protection clause, Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana Jim Crow law that required the segregation of blacks and whites on railroads and mandated separate railway cars for members of the two races.[5] The Court, speaking through Justice Henry B. Brown, ruled that the equal protection clause had been intended to defend equality in civil rights, not equality in social arrangements. All that was therefore required of the law was reasonableness, and Louisiana's railway law amply met that requirement, being based on "the established usages, customs and traditions of the people."

Justice Harlan again dissented. "Every one knows," he wrote,

that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.... [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Such "arbitrary separation" by race, Harlan concluded, was "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."[6]

Since Brown v. Board of Education (1954), Justice Harlan's dissent in Plessy has been vindicated as a matter of legal doctrine, and the clause has been interpreted as imposing a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and sex (see below).

It was also in the post-Civil-War era that the Supreme Court first decided that corporations were "persons" within the meaning of the equal protection clause.[7] However, the legal concept of corporate personhood predates the Fourteenth Amendment.[8] In the late nineteenth and early twentieth centuries, the Clause was used to strike down numerous statutes applying to corporations. Since the New Deal, however, such invalidations have been rare.[9]

Between Plessy and Brown

While the Plessy majority's interpretation of the clause stood until Brown, the holding of Brown was prefigured, to some extent, by several earlier cases.

The first of these was Missouri ex rel. Gaines v. Canada (1938), in which a black student at Missouri's all-black college sought admission to the law school at the all-white University of Missouri—as there was no law school at the all-black college. Admission was denied him, and the Supreme Court, applying the separate-but-equal principle of Plessy, held that a State's offering a legal education to whites but not to blacks violated the Equal Protection Clause.

Smith v. Allwright (1944) and Shelley v. Kraemer (1948), though not dealing with education, indicated the Court's increased willingness to find racial discrimination illegal. Smith declared that the Democratic primary in Texas, in which voting was restricted to whites alone, was unconstitutional, partly on equal protection grounds. Shelley concerned a privately made contract that prohibited "people of the Negro or Mongolian race" from living on a particular piece of land. Seeming to go against the spirit, if not the exact letter, of The Civil Rights Cases, the Court found that, although a discriminatory private contract could not violate the Equal Protection Clause, the courts' enforcement of such a contract could: after all, the Supreme Court reasoned, courts were part of the state.

More important, however, were the companion cases Sweatt v. Painter and McLaurin v. Oklahoma State Regents, both decided in 1950. In McLaurin, the University of Oklahoma had admitted McLaurin, an African-American, but had restricted his activities there; he had to sit apart from the rest of the students in the classrooms and library, and could eat in the cafeteria only at a designated table. A unanimous Court, through Chief Justice Fred M. Vinson, said that Oklahoma had deprived McLaurin of the equal protection of the laws:

There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.

In Sweatt, the Court considered the constitutionality of Texas's state system of law schools, which educated blacks and whites at separate institutions. The Court (again through Chief Justice Vinson, and again with no dissenters) invalidated the school system—not because it separated students, but rather because the separate facilities were not equal. They lacked "substantial equality in the educational opportunities" offered to their students.

All of these cases, including Brown, were litigated by the National Association for the Advancement of Colored People. It was Charles Hamilton Houston, a Harvard Law School graduate and a law professor at Howard University, who in the 1930s first began to challenge racial discrimination in the federal courts. Thurgood Marshall, a former student of Houston's and the future Solicitor General and Associate Justice of the Supreme Court, joined him. Both men were extraordinarily skilled appellate advocates, but part of their shrewdness lay in their careful choice of which cases to litigate—of which situations would be the best legal proving grounds for their cause.[10]

Brown and its consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.[11] In that opinion, Warren wrote:

To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the following year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be local as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown had actually been comprised of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed."

Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened in a handful of cases in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks, fearing of violence or harassment, rarely attended white-identified schools.

In response to Green, many Southern districts replaced freedom-of-choice with geographically-based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s.[12] American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.

There are, broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. Alternatively, liberals argue that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968.[13] Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments.[14]

Carolene Products and the various levels of Equal Protection scrutiny

Harlan Stone, author of Carolene Products

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from the fourth footnote in United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote:

[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[15]

Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia, and that intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren.

The Supreme Court has defined these levels of scrutiny in the following way:

  • Strict scrutiny (if the law categorizes on the basis of race or national origin): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
  • Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest. Note that in past decisions "sex" generally has meant gender.
  • Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg eschewed the language of intermediate scrutiny for sex-based discrimination and instead demanded that litigants articulate an "exceedingly persuasive" argument to justify gender discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.

Discriminatory intent or disparate impact?

After Brown, questions still remained about the scope of the equal protection clause–for example, whether or not the Clause outlaws public policies that cause racial disparities. It has been debated, for example, whether a public school examination that has not been established for racist reasons, but that more white students than black students pass, could be seen to violate the Clause, or whether it requires there to be some intentional bigotry.

The Supreme Court has answered that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies.

Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment. Title VII's standards for public and private employers are the same.) The Supreme Court ruled in Griggs v. Duke Power Co. (1971) that (1) if an employer's policy has disparate racial consequences, and (2) if the employer cannot give a reasonable justification for such a policy on grounds of "business necessity," then the employer's policy violates Title VII. In the years since Griggs, courts have defined "business necessity" as requiring the employer to prove that whatever is causing the racial disparity—be it a test, an educational requirement, or another hiring practice—has a demonstrable factual relationship to making the company more profitable.[16]

In situations involving only the equal protection clause, however, the focus of the court is on discriminatory intent. Such intent was manifested in the seminal case of Arlington Heights v. Metropolitan Housing Corp. (1977). In that case, the plaintiff, a housing developer, sued a city in the suburb of Chicago that had refused to re-zone a plot of land on which the plaintiff intended to build low-income, racially integrated housing. On the face, there was no clear evidence of racially discriminatory intent on the part of Arlington Heights's planning commission. The result was racially disparate, however, since the refusal supposedly prevented mostly African-Americans and Hispanics from moving in. Justice Lewis Powell, writing for the Court, stated, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Disparate impact merely has an evidentiary value; absent a "stark" pattern, "impact is not determinative." (See also Washington v. Davis (1976).)

Defenders of the rule in Arlington Heights and Washington v. Davis argue that the equal protection clause was not designed to guarantee equal outcomes, but rather equal opportunities and that therefore one should not be concerned with trying to fix every racially disparate effect. One should worry only about intentional discrimination. Others point out that the courts are merely enforcing the equal protection clause, and that if the legislature wants to correct racially disparate effects, it may do so through further legislation.[17]

Critics contend, on the other hand, that the rule would exculpate many instances of racial discrimination, since it is possible for a discriminating party to hide its true intention. To uncover the motives of the parties, the court should also consider whether the measure at issue would have disparate impact, critics argue.[18] This debate goes on almost entirely in the academy, since the Supreme Court has not changed its basic approach as outlined in Arlington Heights.

Suspect classes

The Supreme Court has seemed unwilling to extend "suspect class" status (i.e., status that makes a law that categorizes on that basis suspect, and therefore deserving of greater judicial scrutiny) to groups other than women and racial minorities. In City of Cleburne v. Cleburne Living Center, Inc. (1985), the Court refused to make the developmentally disabled a suspect class. Many commentators have noted, however—and Justice Marshall so notes in his partial concurrence—that the Court does appear to examine the City of Cleburne's denial of a permit to a group home for developmentally disabled people with a significantly higher degree of scrutiny than is typically associated with the rational-basis test.[19]

In Lawrence v. Texas (2003), the Court struck down a Texas statute prohibiting homosexual sodomy on substantive due process grounds. In Justice Sandra Day O'Connor's opinion concurring in the judgment, however, she argued that by prohibiting only homosexual sodomy, and not heterosexual sodomy as well, Texas's statute did not meet rational-basis review under the Equal Protection Clause; her opinion prominently cited City of Cleburne.

Notably, O'Connor did not claim to apply a higher level of scrutiny than mere rational basis, and the Court has not extended suspect-class status to sexual orientation. Much as in City of Cleburne, though, the Court's decision in Romer v. Evans (1996), on which O'Connor also relied in her Lawrence opinion, and which struck down a Colorado constitutional amendment aimed at denying homosexuals "minority status, quota preferences, protected status or [a] claim of discrimination," seemed to employ a markedly higher level of scrutiny than the nominally applied rational-basis test.[20] While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases.[21]

Affirmative action

Affirmative action is the policy of consciously setting racial, ethnic, religious, or other kinds of diversity as a goal within an organization, and, in order to meet this goal, purposely selecting people from certain groups that have historically been oppressed or denied equal opportunities. In affirmative action, individuals of one or more of these minority backgrounds are preferred—ceteris paribus—over those who do not have such characteristics; such a preferential scheme is sometimes effected through quotas, though this need not necessarily be so.

Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment[22]) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two Executive Orders. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.[23]

Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger.

In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan law school. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race not as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued that the scrutiny the Court has applied is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.[24] On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.[25]

The Equal Protection Clause and voting

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a "one man, one vote" standard was laid down; in both houses of state legislatures, each resident had to be given equal weight in representation.

It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights, and in reference to the Fifteenth and Nineteenth Amendments, he said:

If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislatures ... can be conferred by judicial construction of the Fourteenth Amendment? [Emphasis in the original.]

However, Reynolds and Baker do not lack a rationale, if seen from another perspective. The Supreme Court has repeatedly stated that voting is a "fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny.[26] Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.

A recent use of equal protection doctrine came in Bush v. Gore (2000). At issue was the controversial recount in Florida in the aftermath of the 2000 presidential election. There, the Supreme Court decided that the different standards of counting ballots across Florida violated the equal protection clause. It was not this decision that proved especially controversial among commentators, and indeed, the proposition gained seven out of nine votes; Justices Souter and Breyer joined the majority of five—but only, it should be emphasized, for the finding that there was an Equal Protection violation. What was controversial was, first, the remedy upon which the majority agreed—that even though there was an equal protection violation, there was not enough time for a recount—and second, the suggestion that the equal protection violation was true only on the facts of Bush v. Gore; commentators suggested that this meant that the Court did not wish its decision to have any precedential effect, and that this was evidence of its unprincipled decision-making.[27]

See also


  1. For details on the rationale for, and ratification of, the Fourteenth Amendment, see Eric Foner's America's Unfinished Revolution, 1863-1877 (Perennial: 1989, ISBN 006091453X), as well as Brest, Levinson, Balkin & Amar, Processes of Constitutional Decisionmaking (Aspen: 2000, ISBN 0735512507), 241-242.
  2. Brest, Levinson, Balkin & Amar, 242-246.
  3. See Foner, passim. See also Bruce A. Ackerman, We the People, Volume 2: Transformations (Belknap Press: 2000, ISBN 0674003977), 99–252.
  4. 118 U.S. 355 Yick Wo v. Hopkins (1886). Retrieved February 4, 2009.
  5. For a summary of the social, political and historical background to Plessy, see C. Vann Woodward, The Strange Career of Jim Crow (Oxford: 2001, ISBN 0195146905), 6, 69–70.
  6. For a skeptical evaluation of Harlan, see Gabriel J. Chin, "The Plessy Myth: Justice Harlan and the Chinese Cases," 82 Iowa L. Rev. 151 (1996).
  7. See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The Court declared that it did not need to hear argument on whether the Equal Protection Clause protected corporations, because "we are all of the opinion that it does." Id. at 396.
  8. See Providence Bank v. Billings, 29 U.S. 514 (1830), in which Chief Justice Marshall wrote: "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men." Nevertheless, the concept of corporate personhood remains controversial. See Carl J. Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights," 41 Hastings L.J. 577 (1990). Retrieved February 4, 2009.
  9. See David P. Currie, "The Constitution in the Supreme Court: The New Deal, 1931–1940," 54 U. Chi. L. Rev. 504, 547 (1987).
  10. See generally Aldon D. Morris, Origin of the Civil Rights Movements (Free Press: 1986, ISBN 0029221307).
  11. For an exhaustive history of the Brown case from start to finish, see Richard Kluger, Simple Justice (Vintage: 1977, ISBN 0394722558).
  12. For a comprehensive history of school desegregation from Brown through Milliken (one on which this article relies for its assertions), see Brest, Levinson, Balkin & Amar, 768–794.
  13. It is important to note that the Civil Rights Acts of 1964 and 1968 were enacted under both the Commerce Clause and section five of the Fourteenth Amendment. Insofar as those Acts regulate "private" conduct under the rubric laid down by the Civil Rights Cases, the Acts were passed by Congress under its Commerce Clause powers. The Supreme Court unanimously deemed the Civil Rights Act of 1964 constitutional under the Commerce Clause in Katzenbach v. McClung, 379 U.S. 294 (1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). In Fitzpatrick v. Bitzer (1976), the Supreme Court held that Title VII of the Civil Rights Act of 1964 validly applied to public employers.
  14. For the history of the political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see Lucas A. Powe, Jr., The Warren Court and American Politics (Belknap Press: 2001, ISBN 0674006836), and Nick Kotz, Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America (Houghton Mifflin: 2004, ISBN 0618088253). For more on the debate summarized in the text, see, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago: 1993, ISBN 0226727033), and Michael J. Klarman, "Brown, Racial Change, and the Civil Rights Movement," 80 Va. L. Rev. 7 (1994).
  15. 304 U.S. 144, 152 n.4 (1938). For a theory of judicial review based on Stone's footnote, see John Hart Ely, Democracy and Distrust (Harvard: 1981, ISBN 0674196376).
  16. Title VII of the Civil Rights Act of 1964 is applied to private employers such as Griggs Power through Congress's Commerce Clause power, not through the Fourteenth Amendment. (This is, of course, consistent with the state action doctrine articulated in the Civil Rights Cases.) However, Title VII also applies to public employers, and the Supreme Court has consistently applied the same disparate impact doctrine to both private and public employers. Compare Griggs, Findlaw. Retrieved February 4, 2009. with Dothard v. Rawlinson, 433 U.S. 321, Findlaw. Retrieved February 4, 2009. (1977), a Title VII suit against the Alabama prison system.
  17. For this point, see this blog post by the legal scholar Don Herzog. Note, however, that the Court as of late has put significant limits on the congressional power of enforcement. See City of Boerne v. Flores, Board of Trustees of the University of Alabama v. Garrett, and United States v. Morrison.
  18. Contrast the Court's opinions in Arlington Heights and Washington v. Davis with, for example, Linda Hamilton Krieger, "The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Protection Opportunity," 47 Stan. L. Rev. 1161 (1995), and Charles R. Lawrence III, "Reckoning with Unconscious Racism," 39 Stan. L. Rev. 317 (1987).
  19. See Gayle Lynn Pettinga, Note, "Rational Basis with Bite: Intermediate Scrutiny by Any Other Name," 62 Ind. L.J. 779 (1987); Neelum J. Wadhwani, Note, "Rational Reviews, Irrational Results," 84 Tex. L. Rev. 801, 809-811 (2006).
  20. Joslin Courtney, "Equal Protection and Anti-Gay Legislation," 32 Harv. C.R.-C.L. L. Rev. 225, 240 (1997) ("The Romer Court applied a more 'active,' Cleburne-like rational basis standard ..."); Robert C. Farrell, "Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans," 32 Ind. L. Rev. 357 (1999).
  21. See Andrew Koppelman, "Why Discrimination against Lesbians and Gay Men is Sex Discrimination," 69 N.Y.U L. Rev. 197 (1994).
  22. See Eric Schnapper, "Affirmative Action and the Legislative History of the Fourteenth Amendment," 71 Va. L. Rev. 753 (1985).
  23. See this subsection in the Wikipedia article on affirmative action.
  24. See Peter H. Schuck, "Reflections on Grutter", in Jurist, Sept. 5, 2003.
  25. See Reva B. Siegel, "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown," 117 Harv. L. Rev. 1470 (2004); Stephen L. Carter, "When Victims Happen to Be Black," 97 Yale L.J. 420 (1988).
  26. The rights to privacy and to interstate travel are part of the Supreme Court's substantive due process jurisprudence, and therefore are not derived from the equal protection clause; rather, the Court imported the standard of strict scrutiny from equal protection jurisprudence into substantive due process jurisprudence. This "importation" is further complicated by the fact that some cases, such as Loving v. Virginia, actually combine Equal Protection issues with substantive due process issues. The right to vote, however, seems to be an exception to the foregoing, in that the substantive right to vote appears to derive not from the Due Process Clause but from the Equal Protection Clause. (See the dicta and concurring opinions in the landmark case of San Antonio Independent School District v. Rodriguez.)
  27. For the criticisms seen here, as well as several defenses of the Court's decision, see Bush v. Gore: The Question of Legitimacy, edited by Bruce A. Ackerman (Yale: 2002, ISBN 0300093799). Another much-cited collection of essays is The Vote, edited by Cass Sunstein and Richard Epstein (Chicago: 2001).


  • Brest, Levinson, Balkin & Amar, Processes of Constitutional Decisionmaking. Aspen, 2000. ISBN 0735512507
  • Ely, John Hart. Democracy and Distrust. Harvard, 1981. ISBN 0674196376.
  • Foner, Eric. America's Unfinished Revolution, 1863-1877. Perennial, 1989. ISBN 006091453X
  • Kotz, Nick. Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America. Houghton Mifflin, 2004. ISBN 0618088253
  • Morris, Aldon D. Origin of the Civil Rights Movements. Free Press, 1986. ISBN 0029221307
  • Powe Jr., Lucas A.; The Warren Court and American Politics. Belknap Press, 2001. ISBN 0674006836


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